QBE Workers Compensation (Vic) Ltd v Freisleben & Nisselle; City of Bayside v Johns & Nisselle [1999] VSCA 207

QBE Workers Compensation (Vic) Ltd v Freisleben & Nisselle; City of Bayside v Johns & Nisselle [1999] VSCA 207 - VSCA 1999 case summary — Zoe

[14]

(a) The Accident Compensation Commission was abolished and (in substance) the Victorian WorkCover Authority was established in its place.

(b) The Accident Compensation Tribunal was abolished and some of its functions were assumed by the Administrative Appeals Tribunal.

(c) The WorkCare Appeals Board was abolished.

(d) Provision was made for the appointment of conciliation officers.

(e) A new Part 3 of the 1985 Act was inserted (ss.39-68) which, by s.39, conferred jurisdiction on the County Court to hear and determine "any question or matter" arising (so far as is now relevant) out of any decision of the Victorian WorkCover Authority or a self-insurer or any recommendation or direction of a conciliation officer; and by s.43 conferred on the Magistrates' Court (in effect) jurisdiction with a limit of $25,000 (later increased to $40,000) in cases in which the County Court had jurisdiction. By virtue of s.43(3), a reference in the 1985 Act to the County Court applies to the Magistrates' Court when exercising jurisdiction under Part 3 .

(f) Section 67 (inserted in Division 3 of the new Part 3) re-stated in subs.(1) the function of a Medical Panel to be "... to give its opinion on any medical question referred by a Conciliation Officer or the County Court or the [Victorian WorkCover] Authority or a self-insurer." Subsection (2) of s.67 empowered a Conciliation Officer or the County Court (and thus the Magistrates' Court) or the Authority to require a worker who claimed or was receiving compensation to submit to a Medical Panel for examination; and s.67(4) provided for suspension of the worker's rights to compensation in the event of an unreasonable refusal to comply with the requirement.

(g) Section 45(1) (inserted in Division 1 of the new Part 3) provided by para.(a) that the County Court (and by virtue of s.43(3) the Magistrates' Court) might, and by para.(b) that it should if a party before it so requested, refer a medical question to a Medical Panel for an opinion; and para.(c) required that "the opinion of the Panel on that question shall, subject to this section, be adopted by the Court as the answer to that question."

(h) Specific provision was made for the reference of a medical question by a Conciliation Officer (s.56(6)) and by the Administrative Appeals Tribunal (s.99AB(1)(a)) for an opinion by a Medical Panel. Section 56(7) and s.99AB(1)(c) respectively provided, in effect, that a Medical Panel's opinion on a question so referred should be conclusive. (Notwithstanding the references in s.67(1) to "the Authority" and "a self-insurer", there was no specific provision made by the 1992 amendments of the 1985 Act for reference of a medical question to a Medical Panel by the Victorian WorkCover Authority or by a self-insurer; and, no specific statutory provision was made for a reference of a medical question to a Medical Panel by either the Victorian WorkCover Authority or a self-insurer until much later: s.93CD(4)(b) and s.104B(9), as respectively inserted in the 1985 Act by ss. 29 and 43 of Act 107 of 1997.)

[20]

The answering contention is that s.67(1) does not by itself confer any power to refer a medical question: it does no more than specify the function of a Medical Panel when a medical question is referred pursuant to an identifiable specific power for a discernible purpose. Counsel for the respondents referred to the identifiable specific powers to refer medical questions that were contained in the 1985 Act by force of the 1992 amendments and thereby conferred on conciliation officers (s.56(6)), on the County Court and the Magistrates' Court (ss.45(1)(a) and 43(3)) and on the Administrative Appeals Tribunal (s.99AB)(1)(a)). The purposes for which those powers to refer medical questions were specifically conferred were said also to be discernible: to assist in the resolution of a dispute either by conciliation or by determination of a proceeding between the parties to that dispute as to which the County Court or the Magistrates' Court or the Administrative Appeals Tribunal had jurisdiction by virtue of the 1985 Act. The parties to such a dispute might be (a) in the case of a conciliation conference, any of the possible disputants referred to in s.53 of the 1985 Act including the Authority, a self-insurer and, after the commencement of Act 50 of 1993, authorised insurers or (b), in the case of a proceeding before a Court or the Tribunal, any of the possible disputants referred to in or identifiable from s.39 or s.99A of the 1985 Act, as the case may be, including the Authority and a self-insurer and, again, after the commencement of Act 50 of 1993, authorised insurers. It was never appropriate or even sensible, and indeed it was pointless, so it was submitted for the respondents, to confer a general or omnibus power on the Authority, a self-insurer or an authorised insurer to refer a medical question of its own motion. The ability to refer a medical question should be confined, as it was submitted, to the court, body or person, acting alone or at the request of a party into whose hands the resolution of a dispute was committed by the 1985 Act.

[22]

Section 67(1) does not expressly confer any power on an authorised insurer and, so far as I can see, there is no necessity to treat the provision as doing so by implication. Equally, I would not accept the argument that it was necessary in 1992 to imply a right of the Authority or any self-insurer at any time to refer a question to a Medical Panel just because of the terms in which s.67(1) was enacted in 1992. There was and there is certainly no necessity to imply a right of an authorised insurer to refer a question to a Medical Panel at any time of the authorised insurer's choosing. If there were, which or what authorised insurer might be supposed to have such a right? Surely it could not be any authorised insurer within the meaning of the 1985 Act? Looking at the matter realistically and conscientiously one should suppose that, if the legislature intended to confer on an authorised insurer a right to refer any medical question, it would be only a medical question arising in the course of a proceeding or procedure that was designed to resolve a dispute to which the authorised insurer was a party. By the same token it is sensible to suppose that the legislature in 1992 intended at most to confer a right on the Authority to refer a medical question to a Medical Panel when it found itself as a party to a dispute on which an answer to the question might bear, and similarly in the case of a self-insurer. So much is disclosed, in my opinion, by reference to the purpose to which the 1985 Act contemplates that the opinion of a Medical Panel is to be put. The opinion is only made useful, so far as I can see, insofar as it is binding for the purpose of a proceeding in a court or before the Administrative Appeals Tribunal or else a conciliation conference over which a conciliation officer presides. Before the enactment of s.68(4), ss.45(1)(c) and 99AB(1)(c) required that the opinion of a Medical Panel on a question referred by the court or the Tribunal, as the case might be, should be adopted by the court or the Tribunal. That necessarily meant that the opinion should bind only the parties before the court or the Tribunal; and s.56(7) required that the opinion should be accepted by the parties to the dispute the subject of conciliation. It might accordingly be thought perhaps that, in a proceeding in which an authorised insurer was a party, there might be some point in treating s.67(1) as conferring on that authorised insurer a right to refer a relevant medical question, but not otherwise. It is not necessary, however, to grapple with that question for it is at present hypothetical. After the enactment of s.68(4) the binding nature of an opinion of a Medical Panel on a medical question that had been referred by the Administrative Appeals Tribunal was apparently unchanged; but otherwise an opinion of a Medical Panel on a question, by whomsoever referred to it, was to be adopted and applied and accepted as final and conclusive "[F]or the purposes of determining any question or matter ...". Again, therefore, so far at least as a proceeding before a court is concerned, the binding quality of an opinion of a Medical Panel is confined to the court and the parties to the proceeding in which the question or matter falls for determination.

[25]

The community is of course expected not only to accept and live by these legal mutations but unfortunately, when they are ill-considered, to bear what is sometimes the unnecessary cost of their enactment, and then the cost of their interpretation, of their amendment and, sometimes of their continuing amendment. This is a case in point, and the history is unpropitious. The Accident Compensation Act 1985 has over the years presumably presented its challenges to those responsible for its drafting and re-drafting, given especially the manner and the pace at which they are driven, as the 1992 and 1993 amendments exemplify. In 1992 the new s.67(1) was, it might be thought, not altogether harmonious with all other provisions of the 1985 Act. At all events s.99AB(1)(a), which empowered the Administrative Appeals Tribunal to refer a medical question to a Medical Panel for an opinion, logically dictated that s.67(1) should list the Tribunal among those to whom or to which it was the function of a Medical Panel to give its opinion. Noticeably, the Tribunal was omitted from the catalogue, presumably by oversight. Correspondingly, the manner of the insertion of "authorised insurer" into s.67(1) in 1993, as one of a host of other provisions, after "the Authority", with the benefit of neither definite nor indefinite article, rather suggests that it might have been a product of "drafting by computer", without scrupulous consideration for particularity. Bearing in mind this and the whole eventful history of the drafting of the 1985 Act, I should not necessarily be prepared to bring to s.67(1) all of all the usual canons of statutory construction. It is true enough that the general presumption is that "...words are used in an Act of Parliament correctly and exactly and not loosely and inexactly...": Spillers Ltd. v Cardiff Assessment Committee [1931] 2 K.B.21, at 43, per Lord Hewart, C.J. This is not to require an assumption, however, that those who draft statutes, especially complicated consequential amendments, are infallible. The reports contain many examples of cases in which the courts have declined to hold that the a consequential amendment of a statute could have intended a result that a literal reading would produce, and have construed it accordingly. To cite a string of examples would be unproductive, for each depends more or less on its own circumstances. I refer, as an instructive instance of a practical approach, to Ye Olde Cheshire Cheese Ltd. v Daily Telegraph plc [1988] 3 All E.R. 217, esp. at 223, per Sir Nicholas Browne-Wilkinson, V-C.; and see Bennion, Statutory Interpretation, 2nd ed., 195-8 and the most instructive Part XXI, Construction against `absurdity', (pp.679-710) passim. It seems to me to be as probable as not that the insertion into the subsection of "authorised insurer" was done somewhat mechanically and, it may be, inartificially. That fortifies my inclination not to feel obliged to give it the kind of implication that the appellants seek to attribute to it.

[55]

What matters now is that, by virtue of the 1997 amendments, if the Authority, an authorised insurer or a self-insurer did refer a medical question to a medical panel, the opinion thereby obtained was binding, at least in the main and even in later court proceedings. That was altogether new. It was perhaps understandable readily enough that the opinion of a medical panel should be binding when obtained by the Court, the Tribunal or a conciliation officer; for in each case there would presumably have been parties before the Court, the Tribunal or the conciliation officer who might sensibly be treated as bound. But the same was not so evident when the opinion was being obtained by the Authority, an authorised insurer or a self-insurer (as witness perhaps the two cases under appeal), and that in itself made it particularly important, in the context of the new s.68(4), to be as clear as possible about the circumstances and conditions under which the Authority, an authorised insurer or a self-insurer was authorised by this legislation to refer medical questions to a medical panel. In the light of the power derived from the requirements made of each of these three by the 1997 amendments, the Act as then amended could not fairly be said to require the implication of any further or additional power in that regard - and particularly a power which could be exercised in unspecified circumstances, under unspecified conditions and towards an unspecified result. If, as the appellants contended, such a power might have been implied before the 1997 amendments (and as to that I express no opinion) quite plainly it could not be implied after them. I think that the introduction of s.68(4) put that conclusion beyond argument. Ironically, it may well have been the very introduction of s.68(4) that led insurers to see some advantage in claiming for themselves a general power to refer medical questions to a medical panel, a power which, it seems from something said by their counsel, was probably of little or no interest to them hitherto.

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)